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HC quashes detention of Gola Shah under PSA
9/22/2022 10:33:09 PM
Early Times Report
JAMMU, Sept 22: The Jammu & Kashmir and Ladakh High Court has quashed the detention under Public Safety Act of Ravinder Gupta @ Gola Shah.
While quashing the detention order, Justice Rajnesh Oswal after hearing both the sides observed that ours is a democratic country and the personal liberty of the individual cannot be curtailed except according to the procedure established by law. If the law provides for curtailment of personal liberty under certain contingencies/conditions, then such conditions/contingencies must exist, then only, the personal liberty of an individual can be curtailed and that too according to the procedure prescribed by the law. The perusal of detention order reveals that in all the FIRs, the allegations against the petitioner are with regard to the commission of offences, which do not fall within the realm of "public order" as defined by section 8(3) of the Act as there are no allegations against the petitioner regarding his activities affecting public at large. The allegations may amount to law and order issue but in no manner can be said to have disturbed the public order.
Justice Rajnesh Oswal further observed that in view of the decision of Apex Court the argument of. Amit Gupta that land grabbing would fall within the meaning of "mischief" loses its force. Thus, this Court is of the considered view that the alleged activities as mentioned above, even if are considered as true, still the said activities do not fall within the purview of the activities prejudicial to the maintenance of public order as defined in 8 (3) (b) of the Act. Also, a perusal of the detention order reveals that the respondent No 2 has not shown his/her awareness about the arrest of the petitioner in FIR No. 53/2022 though the arrest of the petitioner in the said FIR has been mentioned in the dossier. This issue is no longer res Integra that a person who is already in custody in some substantive offence, can still be detained provided that the detaining authority is of the opinion on the basis of the material placed on record before the detaining authority by the sponsoring agency that the petitioner is in custody, there is likelihood of the detenue being released on bail and further that after being enlarged on bail, there is every likelihood that he would indulge in similar criminal activities.
This Court does not find in the order of detention either awareness on the part of respondent No. 2 with regard to the custody of the petitioner in substantive offence or any subjective satisfaction that he was likely to be enlarged on bail. The contention of Amit Gupta that order of detention is to be read in conjunction with dossier cannot be accepted as the detaining authority is not supposed to act as a mere post office but must be alive to the circumstances necessitating issuance of detention order and it must reflect from the order of detention. On this score also, the detention order is not sustainable in the eyes of law.
With these observations, Court allowed the petition and quashed the Detention order No. 06/2022 dated 25.05.2022 passed by respondent. —JNF
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